Appeal No. 2005-1115
Application 09/269,369
USPQ2d 1619, 1622-23 (Fed. Cir. 1996) (“In this case, the patent
discloses no novel use of claim words. Ordinarily, therefore,
‘substantially’ means ‘considerable in . . . extent,’ American
Heritage Dictionary Second College Edition 1213 (2d ed. 1982), or
‘largely but not wholly that which is specified,’ Webster’s Ninth
New Collegiate Dictionary 1176 (9th ed. 1983).”); Seattle Box
Co., Inc. v. Industrial Crating & Packing, Inc., 731 F.2d 818,
826, 221 USPQ 568, 573-74 (Fed. Cir. 1984).
Jackson would have disclosed to one of ordinary skill
in this art that in the preferred form of his invention, angle or
elbow fittings 28 of diffuser C can be “pitched or angularly
related to the head [21] in the desired manner” (col. 3, ll. 50-
62, and col. 5, ll. 17-19). Thus, prima facie, one of ordinary
skill in this art routinely following the teachings of Jackson
would have pitched or angled nozzles 27 so as to mix and agitate
the fluid in container A in any desired manner, including a
“substantially” semicircular nozzle arrangement. See B.F.
Goodrich Co. v. Aircraft Braking Sys. Corp., 72 F.3d 1577, 1582,
37 USPQ2d 1314, 1318 (Fed. Cir. 1996) (“When obviousness is based
on a particular prior art reference, there must be a showing of a
suggestion or motivation to modify the teachings of that
reference. [Citation omitted.] This suggestion or motivation need
not be expressly stated. [Citation omitted.]”). In this respect,
the examiner cites Vretman Fig. 3 as evidence that, prima facie,
one of ordinary skill in the art would have used a nozzle
arrangement that is more semicircular than that shown in Jackson
Fig. 2 (answer, page 4). I agree with the examiner’s position.
See In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA
1981)(“The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the structure
of the primary reference; nor is it that the claimed invention
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